First, a general comment for everyone following this thread: a trademark
is different from a copyright
which is different from a patent
! Questions of "prior art" apply to patents, but not really to the others.
In particular, a trademark is all about commercial use of a specific term
, and not the ideas or mechanisms themselves. The only connection is that a trademark is granted for commercial use of that term in a particular trade or industry. That's why "Apple" could be a trademark for a music company in England (Apple Records) and a perfectly fine trademark, at the same time, for computers (Apple Computer)two different trademarks, in two different industries. It only got to be an issue when the boundaries between those two previously-quite-distinct industries melted away over time...leading to the series of famous court cases between the two companies and the now-famous resolution of the California computer/phone/music player company gaining full rights to the trademark originally held by Apple Records.
Now, for all those complaining (perhaps legitimately) that "multi-touch" is too general and established a term for Apple to trademark it, let's look at the (in my opinion, much more egregious) precedent of Microsoft's trademark on the common English word "windows":
Originally Posted by SpamSandwich
Not so, they have a registered trademark on the term Microsoft Windows. Windows is too generic.
Microsoft was granted a trademark of the common English word "windows" in 1995. I and many others agree with you here, SpamSandwich, that this ought not to have been allowed, but from a quick Google, it was granted and seems to still stand.
MS's trademark has been tested in court, specifically when MS enforced it against "Lindows". Here's a New York Times article
from 30-Dec-02 about the then-new court case. It's quite clear that what's at issue is the validity of MS's existing trademark on a simple English word:
Lindows.com is defending a broad principle, its lawyer says. ''No company, no matter how powerful, no matter how much money it has spent, should be able to gain a commercial monopoly on words in the English language,'' said the lawyer, Daniel Harris, a partner at Clifford Chance.
Fast forward to 11-Feb-04, and here's an article from Law.com
giving the status of the case and profiling the legal issues at play.
Microsoft applied for registration of the Windows trademark in 1990 and was issued the trademark in 1995.
I remember the case being resolved, although I'm not immediately finding an article I can cite. But for a test of the consequences, just try visiting http://lindows.com
and you'll be instantly redirected to http://linspire.com
. Lindows.com lost; Microsoft's trademark on "windows" was upheld.
And finally, here's Microsoft's own page
of helpful guidelines for how we can all properly honor their trademark on "windows". There are various products with longer and more specific names (e.g., "Windows XP operating system")...but the core trademark itself is on the single word "windows". As they so helpfully direct us:
Include an attribution of Microsoft's ownership of the Windows trademark within the credit notice section of your documentation or advertisement. Follow this format:
"Windows is a registered trademark of Microsoft Corporation in the United States and other countries."
So, compared to all of that, plus taking note of the other trademarks that Apple itself already holds on other terms (as others have pointed out earlier in this thread), I would predict (although IANAL) that they should have little trouble getting a trademark
on the term "multi-touch". The key question as I see it is whether any of the prior use of the term has been sufficiently strongly tied to a product, or family of products. Just being associated with some technology doesn't seem to pose much of a hurdle. (And again, the question of what patents
Apple may legitimately be able to procure in this domain is a very separate question.]